NO. 07-01-0177-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A APRIL 12, 2002

______________________________ ERIC RAMIREZ, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 42nd DI STRICT COURT OF SW ISHER COUN TY; NO. B3606-0008; H ONORABLE ED SELF, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ. Appellant

Eric Ramir

ez wasconvicted by a jur y of burgl ary of a habita tion and the commission of the felony offense of sexua l assault, and the jury assessed punishment at 37 1⁄2 years

confinement and a $5,000 fine. By two issues, appellant ch allenges his convicti on contending th e trial cour t erred (1)

in admitting a portion of his testimony given during a previous revocation proceeding in violati on of his rig ht against s elf-incrimi nation,1 The victim suffers from mental retard ation and at the ti me of trial was 21 years old. 2 and (2) in failing to include the lesser included of fense of se xual assau lt in the court’s charg e. Bas ed upon the ra tional e expr essed h erein , we affirm. Appellant

does not c hall enge the l egal o r fac tual suffici ency of the evidence. Therefore, only the ev idenc e necessary for the disposi tion of appellant’ s issues w ill be discussed. On the eveni ng of June 24, 2000, a pp ellant bu rglarized the victim’s 1 home. After appellant enter

ed the vict im’s home and dis covered that she was al one, he engaged in sexual i ntercourse w ith her. The v ictim’s mother , who was away from the home at t hat time, di d not discover the burglary until the following morning. During the poli c e investig ation, appellant parked his vehicle adjacent to the victim’s home, which resulted in his identification and apprehension. Afte r he was arrested, appellant made a voluntary written statement admitti ng that he broke into thehome; however, he claimed that sex w ith the victim w

as consensual. At the time of arr est, appe llant wason probation for a prior offense whereupon th e State filed a moti o n to revokehis probatio n. Appellant w as represented by counsel and testified in his own de fense at the probation revocati on hearing. Testimony

from the revocation hearing was admit ted at trial. After his pri or testimony

was admitted over the objections of de fense counsel, appellant again took the stand in his own defense. The wri tten statements g iven to pol ice, the testi mony from the revocat ion hearing, and the testimony appellant gav

e at trial w

ere consisten t. Appellant3

stated that hebrokeinto t he home with the intent to steal , butdenied any intent to commit sexual assault. He claimed he eng aged in consen sual sex w ith the vi ctim, but confir med a prior aw

areness of the v ictim’s mental retardation. By his first issue, appellant contend s the trial court erre d in admitting a portion of his testimony

given d uring the prior r evocation pr

oceeding in violatio n of

hisrig ht ag ains t se lfincriminati on, irrespect ive of his taking the stand d uring th e revocat ion proc eeding. Appellant

contends his prior testimony at the revocati on hearing w as inadmissib le at trial for any purpos e. We disagree.
Atimely and reasonably specific objec tion is req uired to pres erve err or for appellate revie w. Tex. R. App . P. 3 3.1( a); B utle r v. State, 872 S.W .2d 227, 236 (Tex.Cr.App. 19 94), cert. denied , 513 U.S. 1157, 115 S.Ct. 11 15, 130 L.Ed.2d 10 79 (1995). W here the alleged
error relates to t he admission of ev idence, a timel y objecti on must be made stati ng the specific ground of object ion. Tex. R . Evid. 1 03(a) (1); Hig gins v . State, 924 S.W.2d 739, 745 (Tex.App.–Texarkana 1996, pet. r ef’d ). In addition, the objection at trial must comport with the error complained of on appeal. Goff v. State, 931 S.W.2d 537, 551 (Tex.Cr .App. 1996), cert. denied , 520 U.S. 1171, 117 S.Ct. 1438, 13 7 L.Ed.2d 545 (1997) . Appellant objected to the admissi on of his testimony at the probation revocat ion hearing on th e grounds that it was hearsay and violated his right against se lf-i ncrimination, but his obj e ctions were overruled. H ere, he contends the trial court erred by admitting th e testi monyfrom the probation revocation procee ding as an exception to the hearsay rule4

under Rule 801(e) (2)(A) of th e Te x as Rules of Ev idence wi thout consideri ng the implicationsof admitting such testimony upon his right against self-incri mination containe d in the U nite d Sta tes a nd T exa s Constitutio ns. It is uncertain from his argument w hether appellant

contests admis sibility

as an exceptio n to the hearsay rule app lying a bala ncingtest weighed against Fi fth Amendment implicati ons, or simp ly p resents tw

o separate objections from the t ria l co urt by one h ybr id i ssue . In the i nter est of justice, we w ill
cons ider each poss ibili ty. Hearsay is de fined as an oral or writte n "statement, other than one made by th e declarant

while t esti fyin g at th e tria l or he arin g, of fer ed in evide nce t o pro ve the truth of the matter asserted." T EX . R. E VID . 801(d); Gar cia v. State, 868 S.W.2d 337, 339 (Tex.Cr .App. 1993). Rule 802 providesthat "hearsay is not admiss ible excep t as provi ded by statute or these rules." However , Rule 801(e) (2)(A) pr ovides that a c rimin al de fen dan t's o wn statements, when b eing o ff ered again st him , are not h ears ay. T EX . R. E VID . 801(e)(2)(A); Trevino v. State, 991 S.W .2d 849, 853 (Tex.Cr.App. 19 99). A party's own statements are nothearsay and they are admis sible on the theory that a party is estopped from challengin g the fundamental reli ability or trustw

orthiness of his

own statements

. Trevino , 991 S.W.2d at 853. The rule recog nizes that the out-of-court statements of a party differ from the out- of-court statements of n on-parties and raise diff erent evidentiary concerns. Id. Here, the s tatements offered at tri al against appellant were taken from his own sworn testimony

given a t a prior pr

oceeding and w

ere therefore a hear

say exc lusion; t hus, the trial cour t did not err

in overruling appell ant’s hearsay objection.5

However, notall statementsof a criminal d efendant are admissi ble. For exampl e, a statement may not

be used as ev idenc e agains t a defendant unless it was voluntarily made and free from coerci on. See Smith v. State, 547 S.W.2d 6, 8 (Tex.Cr.App. 1977). Also, a statement

may b e admissible for a limited pur pose. See Braggs v. State, 951 S.W.2 d 877, 883 (Tex.A pp.--Texar kana 1997, pet. ref’d ). A defendant’s ow n statem en t maybe admissible at one ph ase of a proceeding , but not be admiss ible during the guilt/innocence phase. See Nelso n v. State, 765 S.W .2d 401, 403 (Tex.Cr.App. 19 89). In addition, w hen testimony is given for a limited p urpose such as a suppression hearing, itmay not there after be admitted ag ainst the defendan t at trial on the issue of g uilt. Brumfield v. Stat e , 4 4 5 S

. W. 2d 732, 737 (Tex.Cr.App. 19 69). However, none of these instances of non-ad missibili ty apply here.
The Fifth Amendme nt privilege againstself-incrimination, which is binding upon the states through the F ourteenth Amendment, pr ovides in part: "[n]o per son . . . shal l be compelled in any cr iminal case to be a witne ss against himself. . . ." U.S. C ONST . amend. V; R eese v. State, 87 7 S.W.2d 328, 335 (Tex.Cr.App. 1994). A concurrent rig ht exists under the Texas Constitutio n. T EX . C ONST . art. I, §10. It is axiomatic that the right against self-incri mination is to prohibit compulsion of te stimony whic h ma y expose a pers on to criminal pr

osecution. Reese , 877 S.W.2d at 335. However, a criminal defendant 's right to not give evidence against himself is subject to waiv er if do ne kn owingl y, voluntari ly, and in telligentl y, and mig ht be done by conscious6

decisionsof

trial str ategy. See Brown v . State, 617 S.W.2d 234, 236 (Tex.Cr.App. 1981); Taylor v. State 474 S.W .2d 207, 211 (Tex.Cr .App. 1971). When a criminal defendant voluntarily

takes the stand to testify i n his own defense, he wai veshispri vi leg e ag ains t se lfincriminati on. See Nelson , 765 S.W.2d at 403. Appellant

cites Mitchell v. United States, 526 U. S. 314, 119 S.Ct. 130 7, 143 L.Ed.2d 424 (1999), Carroll v. State, 42 S.W.3d 129 (Tex. Cr.Ap p. 20 01), and C rosso n v. State, 36 S.W.3d 642 (Tex.App.–Houston [1 stDist.] 2000, no pet.) in sup port of his arg umentthat the trial court’s deci sion to admit hi s prior tes timony over counsel’s objection violated his right against self-incri mination; however, as t he State correc tly points out, the cases upon which appellant rel ies are distingu ishable from the i nstant case. App ellant does not cite any cases t hat inv

olvethe admi ssion of test imony from a prior rev

ocation hearing where a defendant voluntar ily test ified on his ow n behalf and we hav e found none. Appellant doesnot contend that hi s testimony at the probation rev

ocation hearing
was offered f or a limited purpo se or was either involuntary or

coerced. To thecontrary , the reporter’s record of

the underly ing proceedi ng demonstratesthat the testimony was given by appellant w hile under di rect exami nation by hi s own cou nse l. Accordi ngly, ap pellant waived his privilege against self-incri mination when he took the s tand to te stif y in his own defense at the probati on revocati on hearing. Appellant’s fir st issue is

overrul ed. By his second i ssue, app ella nt contends the trial court erred in ref using to submit to th e jury a charge on the lesser included offe nse of sexual assault. To det ermin e if a7

defendantis entitled to a lesser included offense instruction, a tw o prong test applies: (1) the les ser

inc lude d offe nse m ust be i ncl uded wi thin the p roof n ecess ary to establish the offense charged, and (2) some ev idence must ex ist in the r ecord that

would permit a jury rationallyto find that if the defendant is guilt y, he is g uilty onl y of th e lesser included offens e. Lofton v. State, 45 S.W.3d 649, 651 (Tex.Cr.App. 2001). A defendan t's ow n testimony

that he committed no offens e, or testi mony whi ch otherwi se shows t hat no offense occurred at all, is not adequate to rai se the issue of a l esser incl uded offense. Id. at652. Howev

er, if a defendant ei ther presents evidence that he com mitted no off ense or presents no ev idence, and there is no evidence otherwise showing that he is guilty only of a lesser incl ud ed offense, then a charg e on a lesser included offense is no t requir ed. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Cr.App. 199 4). The evi dence must establi sh that if a defendant is guilty , he is gui lty only of the lesser

included offense. Lofton , 45 S.W.3d at 652. Appellant

was char

ged wit h burglary

of a habitation w ith the commission of a sex ual assault. During trial, appel lant testified t hat when he br oke into the habitation, he “went in to steal something . . . .” H e also testified tha t the victim consented to sexual relations. By his testimony

that the sexual relations w ere consensual, appellant effectively denied t he commission of

the lesser i ncluded offense, thereby precluding any possi bility of a finding of the lesser i ncluded offense. Therefore he wa s not entitled to an instructi on on the lesser included offense of sex ual assault. Appellant’s s econd issue is overrul ed.8

Accordingl y, the judg ment of the trial court is affirmed.
Don H. Reavis Justice
Publish.